Madras High Court
E.Thanappan vs The Chief Engineer / Personnel on 1 August, 2023
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
W.P.No.2839 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Orders Reserved on : 21..07..2023
Orders Pronounced on : 01..08..2023
Coram
THE HON'BLE MR JUSTICE N.SATHISH KUMAR
Writ Petition No.2839 of 2023
and
W.M.P.Nos. 2958, 2961 & 19145 of 2023
E.Thanappan
..... Petitioner
-Versus-
1.The Chief Engineer / Personnel
Tamil Nadu Generation and Distribution Corporation
(TANGEDCO) Limited,
O/o the Chief Engineer ( Personnel),
144, Anna Salai, Chennai.
2.The Superintending Engineer,
Tamil Nadu Generation and Distribution Corporation
(TANGEDCO) Limited,
O/o the Superintending Engineer,
CEDC/North, Chennai 600 002.
3.The Superintending Engineer,
Tamil Nadu Generation and Distribution Corporation
(TANGEDCO) Limited,
O/o the Superintending Engineer,
CEDC/South-II, K.K.Nagar,
Chennai 600 078.
4.The Executive Officer,
Tamil Nadu Generation and Distribution Corporation
(TANGEDCO) Limited,
M/Tambaram, Chennai 600 045.
https://www.mhc.tn.gov.in/judis
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W.P.No.2839 of 2023
5.The Assistant Executive Engineer,
Tamil Nadu Generation and Distribution Corporation
(TANGEDCO) Limited,
M/CEDC/South-II,
Kadaperi, Chennai 600 047.
..... Respondents
Petition filed under Article 226 of The Constitution of India, praying to
issue a Writ of Certiorari calling for the records of the 1 st respondent relating to
Memo in Memo No.073883/G.13/G.131/2022 dated 16.12.2022 and the 2nd
respondent's memo in Memo No.20054/1848/SE/CEDC/N/Adm
I/A1/F.Reposting/19 dated 21.12.2019 and to quash the same as illegal.
For Petitioner : Mr.V.C.Janarthanan for
Mr.R.Subburaj
For Respondents : Mr.David Sundar Singh
for RR1 to 5
ORDER
The orders of transfer and posting and reposting are under challenge in the present writ petition.
2. Though the writ petition challenges both the order of transfer and positing issued by the 1st respondent in Memo No.073883/G.13/G.131/2022 dated 16.12.2022 transferring and posting the petitioner as Assistant Engineer/Electrical/Shift/110 KV SS/Ennore/Chennai Electricity Distribution Circle/North against the existing vacancy and the order of reposting in Memo No.20054/1848/SE/CEDC/N/Adm I/A1/F.Reposting/19 dated 21.12.2019 issued by the 2nd respondent reposting the petitioner as Assistant https://www.mhc.tn.gov.in/judis 2 of 19 W.P.No.2839 of 2023 Engineer/Shift/110 KV SS/Ennore/Tondiarpet Division/Chennai EDC/North in the existing vacancy, the main challenge is only with regard to reposting of the petitioner to Ennore/Tondiarpet Division.
3. The brief facts leading to the filing of the writ petition are as under:-
(a) The petitioner joined the services of the TANGEDCO as Technical Assistant on 30.12.1997. Thereafter, he was promoted as Junior Engineer and further promoted as Assistant Engineer. When he was working as Assistant Engineer at SS/Thirunavalur, Kallakurichi at his request, he was transferred to Chennai South-II Region and posted as Assistant Engineer, Operation and Maintenance, New Colony CEDC/South and he assumed charge on 11.07.2022 and was working there. While so, he was served with the impugned transfer orders. According to the petitioner, on 11.07.2022, the then in-charge Assistant Engineer, who was holding additional charge of New Colony Section did not hand over the charge to him with an intention to cover up the illegalities committed by him joining hands with others. The 5 th respondent, the immediate superior of the petitioner, did not issue any memo to the Junior Engineer concerned. On 15.08.2022, petitioner sent a letter to the then Assistant Engineer requesting him to hand over the charge and seeking information with regard to 45 nos. of disconnected service connections.
https://www.mhc.tn.gov.in/judis 3 of 19 W.P.No.2839 of 2023 However, after taking charge of the office, the petitioner learnt that there was huge loss caused to the board and the consumers whose service connections were disconnected had again started consuming the energy illegally without paying any consumption charges. In this regard, the petitioner also sent a report to the 5th respondent.
(b) On 22.08.2022, one Mr.S.Ashok Kumar made a request to him for change of tariff from VI to V. He immediately made an endorsement that necessary documents for the change of tariff were not produced along with the application. But, without considering his endorsement, the 5th respondent insisted him to send a proposal without making any remarks. He did not do so. Therefore, the 5th respondent himself passed an order changing the tariff by his proceedings dated 01.09.2012.
(c) The petitioner issued a memo to one Venkatesh, who was working as Inspector of Assessor for certain serious irregularities committed by him calling upon him to submit his explanation. But, there was no explanation from the said Venkatesh. Therefore, the petitioner sent a letter to the 5 th respondent to take action against the said Venkatesh. The said Venkatesh had discharged his work properly and had not assessed about 700 meters which led revenue loss to the board. Therefore, he sent a report to Execute Engineer on https://www.mhc.tn.gov.in/judis 4 of 19 W.P.No.2839 of 2023 16.09.2022. The 5th respondent in violation of the rules and regulations effected HT service connection to one M/s.Parvathy Ortho Hospital without disconnecting the existing LT service connection. This has also caused revenue loss to the board.
(d) On 13.10.2022, based on a letter from a consumer, the petitioner issued a memo to the said Venkatesh for having received a sum of Rs.1,60,000/- as illegal gratification. The petitioner has also come across theft of energy by the consumers whose service connections were disconnected. In this regard on 10.10.2022, he sent a letter to the 5th respondent requesting him to provide the details about disconnected service connections and also informed the huge revenue loss to the board. On 13.10.2022 he sent a report to the 5 th respondent and also to the Executive Engineer.
(e) On 13.10.2022, the 5th respondent undertook an inspection of a Bakery situated at No.1 CLC Works Road, New Colony, Chromepet, Chennai and found out illegal restoration of service connection which was disconnected on 20.01.2020 for non payment of consumption of charges of Rs.32,815/-. On the very same day, a working sheet was issued for a sum of Rs.5,30,872/- including a compound fee of Rs.12,000/-. The consumer had paid the compounding fee on the same day in order to avoid the criminal prosecution. https://www.mhc.tn.gov.in/judis 5 of 19 W.P.No.2839 of 2023 However, the 5th respondent on his own issued an amended order for Rs.4,51,678/- without assigning any reason.
(f) On 15.10.2022 one V. Rajeswari applied for fresh three phase service connection along with a consent letter of Velmurugan by giving an undertaking that she would pay all the outstanding dues pertaining to SC No.293/020/333. On 21.10.2022, the said V. Rajeswari had paid the outstanding dues and as such based on the oral direction of the 5th respondent, the petitioner had effected service connection to the said V.Rajeswari. When that be so, the 5th respondent issued a memo dated on 10.11.2022 to the petitioner calling upon his explanation as to how he could give service connection on 21.10.2022 without collecting the arrears. The said memo was antedated to make it appear that it was prepared on 03.11.2022. Another letter, which was also antedated, was received by the petitioner on 10.11.2022. Without giving an opportunity to the petitioner to submit his explanation, he was placed under suspension w.e.f. 04.11.2022. The petitioner immediately approached this court by way of Writ Petition in W.P.No.31716 of 2022 seeking revocation of order of suspension. The said writ petition was disposed of by this court by order dated 28.11.2022. Pursuant to the orders of this court in W.P.No.31716 of 2022, the petitioner gave a representation on 30.11.2022 https://www.mhc.tn.gov.in/judis 6 of 19 W.P.No.2839 of 2023 and based on such representation, the order of suspension was revoked by the 3rd respondent by his proceedings dated 03.12.2022. However, as the petitioner was relieved off from his duties w.e.f. 04.11.2022, he was directed to await posting order from the 2nd respondent. Now, the petitioner has been transferred from South to North Circle. Hence, the writ petition is on the ground that the impugned orders of transfer and posting are nothing but punitive and motivated and against the transfer policy of the Government in G.O.(Ms) No.10, P & AR Department, dated 07.01.1994.
4. The 3rd respondent – Superintending Engineer, Chennai EDC / South- II, Chennai 600 078 has filed his counter affidavit inter alia contending that the 5th respondent during his inspection detected a case of theft of energy by a consumer by unauthorisedly reconnecting the disconnected service connection and issued a provisional assessment with working sheet assessing the loss caused to the board as Rs.4,51,678/- . As the consumer had failed to deposit the assessed amount towards extra levy though she had paid the compounding fee of Rs.12,000/- , the service connection was disconnected. However, the petitioner, who was duty bound to collect the amount as assessed, had unilaterally and without any authority of law, had prepared a revised working https://www.mhc.tn.gov.in/judis 7 of 19 W.P.No.2839 of 2023 sheet indicating that the consumer has to pay Rs.2,19,839/- only instead of Rs.4,51,678/- . After payment of Rs.2,00,000/-, a cheque for a sum of Rs.2,39,678/- was given by the consumer and when it was presented for collection it was returned as insufficient funds. While so, the consumer made a complaint to the Chief Engineer Chennai Region, South alleging that the petitioner had received a blank cheque by making false representation that after deducting Rs.2,00,000/- already paid, he would fill in the balance amount of Rs.19,839/- only but however, he wrote in the cheque the balance amount as per the assessment made by the 5th respondent. As per Regulation 27 of the Tamil Nadu Distribution Code, 2004 for providing any new or additional service connection to a premises in which if there is any dues to be paid, the service connection should be effected only after payment of such dues. However, the petitioner having full knowledge about the dues to be paid had provided an additional service connection in the name of wife of the consumer of service connection No.293-020-333 (Tariff V) and therefore, the petitioner had not only acted in violation of the statutory regulations in force but also failed to discharge his basic duty to realize the dues before considering service connection and thereby caused a loss to the Board.
5. It is further contended by the 3 rd respondent as there were series of https://www.mhc.tn.gov.in/judis 8 of 19 W.P.No.2839 of 2023 complaints against the petitioner from the consumers of New Colony, he was placed under suspension on 04.11.2022. Thereafter, pursuant to the suspension of the petitioner, one Sudhakar was posted as Assistant Engineer and he assumed charge on 18.01.2023. Thereafter, the 3rd respondent in exercise of the powers conferred under the Regulations, revoked the order of suspension on 03.12.2022 and the petitioner was asked to await posting orders. Accordingly, the 1st respondent issued an order on 16.12.2022 posting the petitioner as Assistant Engineer, Electrical/Shift/110 KV SS/Ennore/Chennai Electricity Distribution Circle/North which is headed by the 2nd respondent. The petitioner did not choose to join duty as per the order of posting / reposting. The petitioner was posted only within Chennai area. The transfer and posting was only on public interest.
6. The petitioner has filed a rejoinder reiterating that transfer is mala fide and punitive in nature.
7. Heard Mr.V.C.Janarthanan, learned counsel appeared on behalf of Mr.R.Subburaj, learned counsel on record for the petitioner and Mr.David Sundar Singh, learned standing counsel for the respondents. https://www.mhc.tn.gov.in/judis 9 of 19 W.P.No.2839 of 2023
8. Mr.V.C.Janarthanan would submit that the instances of irregularities in the matter of effecting new service connections and certain other lapses in the other official work pointed out in the writ petition would show that the order of transfer and posting is nothing but mala fide and punitive in nature and the same is not sustainable in the eye of law. In support of his contention, he placed reliance upon the judgement of this court in Sri. Kanchi Kamakoti Peetathipathi Jayendra Saraswathy Sankara Nursery & Primary School v. Chief Educational Officer and others, (2021) 4 CTC 683 and P.Kumaresan v. The Collector, Salem District and 2 others (W.P.No.15057 of 2022 dated 07.07.2022).
9. Mr.David Sundar Singh would on the other hand contend that the petitioner is facing departmental proceeding for certain irregularities committed by him and for demanding bribe. Though the order of suspension of the petitioner was revoked, in the place of the petitioner some other officer has been posted and the petitioner was posted only within Chennai area and not to any far off place. There is no bar under G.O.(Ms) No.10, P & AR Department, dated 07.01.1994 to transfer an officer who is facing disciplinary proceedings. https://www.mhc.tn.gov.in/judis 10 of 19 W.P.No.2839 of 2023
10. I have considered the rival submissions and also perused the records carefully.
11. Though the petitioner alleges in the writ petition that he found out so many irregularities, the same cannot be gone into by this court in the writ petition at this stage as they are disputed questions of fact. It is not in dispute that the petitioner was placed under suspension on 04.11.2022 in the larger public interest on the allegation that he had on his own corrected and reduced the assessment dated 13.10.2022 made by the 5th respondent from Rs.5,30,872/- to Rs.2,19,839/- There was also an allegation against the petitioner that he had threatened the consumer and received a blank cheque leaf and he himself filled the amount of Rs.2,19,839/- without the knowledge of the consumer and on presentation of the same for collection, it was dishonoured.
12. Be that as it may, this court is not venturing into the allegations made by either party. The petitioner himself stated in the affidavit filed in support of the writ petition that he had carried out certain official work based on the oral instructions of the 5th respondent, who is the immediate superior to the https://www.mhc.tn.gov.in/judis 11 of 19 W.P.No.2839 of 2023 petitioner. That itself would show that there was certain violations committed by the petitioner in effecting the service connections. Though he was initially suspended, pursuant to the order of this court in W.P.No.31716 of 2022, the petitioner made a representation and on considering the request of the petitioner, the order of suspension was revoked on 03.12.2022 and the petitioner was transferred and posted in North Circle. It is relevant to note that this court had not gone into the legality of the order of suspension and had only given liberty to the petitioner to approach the authority concerned to submit a representation seeking revocation of his suspension. It is seen from the order of revocation of suspension of the petitioner that the revocation was without prejudice to the disciplinary proceeding pending against the petitioner and further the petitioner was directed to await order of reposting from Chief Engineer (Personnel), Chennai. Thereafter, he was posted as Assistant Engineer, Ennore, Chennai North.
13. Much reliance was placed on G.O.(Ms) No.10, P & AR Department, dated 07.01.1994. Annexure I to the said GO sets out instructions to be followed in the matter of transfers of Government servants in Groups A, B and C. Clause (iv) of Para II to Annexure I – General Policy of Transfer or https://www.mhc.tn.gov.in/judis 12 of 19 W.P.No.2839 of 2023 Change of Post once in 3- Years reads as under:-
“(iv) During the “transfer period” persons who have already completed a service of 3 years or who would complete a service of 3 years as on 30th June next, shall be subjected to transfer to another seat or post, as the case may be, subject to the condition that the transfer is to a vacant seat or post or the incumbent of the latter seat or post is also due for transfer under these instructions. Where a person has completed a service of 3 (Three) years in a particular post or seat and has no other post outside to be transferred to (as in the Secretariat), a change in the seat or post within the same office/institution shall be given. In the case of junior officials like Junior Assistants, Typists, Assistants, etc., transfer to a different station may general be considered only if there is no other suitable post in the same station to accommodate them under these guidelines.”
14. Para III to Annexure I sets out exceptions to the General Guidelines.
Sub clause (f) instructs that in cases where severe allegations are pending enquiry, when it is considered necessary in the public interest, and sufficient in https://www.mhc.tn.gov.in/judis 13 of 19 W.P.No.2839 of 2023 lieu of suspension, that the officer maybe transferred. In that case, transfer shall be effected to a vacant post in another station or to the post where the junior most person of the same category is working.
15. The above would make it clear that General Policy of Transfer or Change of Post Once in 3-years relied on by the petitioner cannot be applied to his case. The case of the petitioner squarely falls within the exception to the general guidelines. It is also relevant to note that when the very order of suspension was put under challenge on the allegations of mala fide and punitive and also motivated, this court had refused to interfere with the order of suspension. The only leverage given to the petitioner was to make a representation for revocation of order of suspension. Thereafter, the respondents revoked the order of suspension with instruction to the petitioner to await order of postings in any station within Chennai. Therefore, this court is of the view that even as per G.O.(Ms) No.10 where severe allegations are pending enquiry, when it is considered necessary in the public interest, and sufficient in lieu of suspension, that the officer may be transferred.
16. Subsequently, the Government by its letter dated 09.08.1994 https://www.mhc.tn.gov.in/judis 14 of 19 W.P.No.2839 of 2023 clarified G.O.(Ms) No.10, P & AR Department, dated 07.01.1994. The relevant portion of the said letter is extracted hereunder for ready reference:-
“(III). In the said G.O. In sub-clause (f) of para III (vii), the following shall be added at the end: “Transfers shall not be effected on the basis of allegations, unless the allegations are prima facie found to be true by a preliminary enquiry and it is decided by the transferring authority that the continuance of the officer in the same station is injurious to public interest and that he can be transferred rather than suspended from service. When such transfers on complaints / allegations are made after preliminary enquiry, it should be followed up by a detailed investigation and disciplinary action instituted on allegations finally found to be substantiated”.
17. A perusal of the aforesaid clarification issued to G.O.(Ms) No.10 would make it clear that transfer was not motivated and punitive as alleged by the petitioner. The authority had originally decided to suspend the petitioner pending enquiry on the basis of severe allegations. Though the suspension order was served on the petitioner subsequently, he was suspended w.e.f.
04.11.2022 and immediately in the place of petitioner, Sudharkar, Assistant https://www.mhc.tn.gov.in/judis
15 of 19 W.P.No.2839 of 2023 Engineer was posted. When the petitioner challenged his suspension, this court had negatived the plea of the petitioner. Thereafter, the authorities had revoked the order of suspension of the petitioner and thereafter, the petitioner was posted as Assistant Engineer in North Circle which is within the Chennai region. Therefore, the clarification issued to G.O.(Ms) No.10 cannot be made applicable to the case of the petitioner when the records available before this court make it clear that only after revoking suspension order, transfer order has been passed. Mere assertion or a vague or bald statement is not sufficient. The law imposes upon the person levelling allegation of mala fide to discharge the burden of proving such mala fide action by producing the requisite materials. [vide State of UP v. Gobardhan Lal [(2004) 11 SCC 402]. In the instant case, the petitioner has failed to discharge his burden to prove such allegations of mala fide by producing requisite materials or to demonstrate the same either by admitted or proved facts. On the other hand, the reason assigned by the respondents for the transfer of the petitioner has justification. Therefore, the contention of the petitioner that the impugned order of transfer and posting was mala fide and punitive cannot be countenanced. A Government servant has no vested right to remain posted at a place of his choice or nor can he insist that he must be posted at one place or the other unless such a transfer is vitiated by https://www.mhc.tn.gov.in/judis 16 of 19 W.P.No.2839 of 2023 violation of any statutory provision or suffers from mala fides. Transfer of an employee is not only an incident inherent in terms of the appointment but also implicit as an essential condition of service in the absence of any specific indication to the contrary. I take support to the above observations from the judgements of the Supreme Court in cases of Rajendra Singh and others v. State of Uttar Pradesh and others [(2009) 15 SCC 178] and U.P. v. Gobardhan Lal [(2004) 11 SCC 402. In view of my above conclusion, the judgements cited by the learned counsel for the petitioner are of no avail to the case of the petitioner.
18. In view of the above discussions, this court finds no merit in the writ petition and the same deserves only to be dismissed.
In the result, this writ petition is dismissed. No costs. Consequently, connected MPs are closed.
01..08..2023
Index : yes / no
Neutral Citation : yes / no
Speaking / Non Speaking Order
kmk
https://www.mhc.tn.gov.in/judis
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W.P.No.2839 of 2023
To
1.The Chief Engineer / Personnel
Tamil Nadu Generation and Distribution Corporation (TANGEDCO) Limited, O/o the Chief Engineer ( Personnel), 144, Anna Salai, Chennai.
2.The Superintending Engineer, Tamil Nadu Generation and Distribution Corporation (TANGEDCO) Limited, O/o the Superintending Engineer, CEDC/North, Chennai 600 002.
3.The Superintending Engineer, Tamil Nadu Generation and Distribution Corporation (TANGEDCO) Limited, O/o the Superintending Engineer, CEDC/South-II, K.K.Nagar, Chennai 600 078.
4.The Executive Officer, Tamil Nadu Generation and Distribution Corporation (TANGEDCO) Limited, M/Tambaram, Chennai 600 045.
5.The Assistant Executive Engineer, Tamil Nadu Generation and Distribution Corporation (TANGEDCO) Limited, M/CEDC/South-II, Kadaperi, Chennai 600 047.
https://www.mhc.tn.gov.in/judis 18 of 19 W.P.No.2839 of 2023 N.SATHISH KUMAR.J., kmk Writ Petition No.2839 of 2023
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